Free content and DRM from Evan Prodromou

Digital Rights Management ("DRM") is a hot-button issue with many Free Software and information rights activists. The point of DRM technologies is to allow copyright holders to proscribe certain activities by the users of a work, such as distributing verbatim or modified copies of the work. The big problem with DRM is that it's usually heavy-handed and ignores fair use rights and right of first purchase of the user. Another is that circumventing DRM systems, even if the use is lawful, is prohibited in the US and other countries by laws like the DMCA, and subject to criminal prosecution.

DRM and Freedom

DRM is incompatible with the goals of Free Software and Open Content. If the copyright holder wants to allow all recipients to freely copy verbatim and modified versions of the work, then a DRM technology that prevents those activities does not meet the creator's nor the recipients' needs.

Of course, like the old joke's punchline goes, "Don't do that, then." The biggest concern about DRM and Free content, however, is that an intermediary will take a creator's work and "lock it up" in a DRM'd format and distribute that work, making it impossible for downstream users to exercise the rights the creator wanted to ensure for them.

For verbatim copies, this is a minor concern, since ostensibly recipients could get another modifiable version either from the creator him/herself, or from another source more sympathetic with Freedom. However, for modified copies, there's a real risk that an intermediary will add value to the original work, and prevent creative reuse of the combined or derived work by applying DRM.

Thinking about this kind of stuff requires remembering that there are really three parties involved: the creator, who made the original work; the licensee, who redistributes a verbatim or modified version of the original work; and the recipients, that is, the end user, whose freedoms we want to protect.

Anti-DRM clauses

To prevent this restriction of freedom, most Free Content licenses have some form of anti-DRM clause.

There are some notable exceptions; the Free Art License, for example, doesn't include any anti-DRM requirements; nor does the Open Publication License.

Most Free Software licenses also ignore DRM or copy-protection schemes. This is mostly historical, since most copyleft program licenses require that source code be made available, and theoretically recipients would be modifying the source, not the object code. For non-copyleft licenses, putting re-distribution restrictions on downstream licensees is generally a no-no.

Problems with anti-DRM clauses: micro

Anti-DRM clauses have some value in ensuring that all recipients of derived works can exercise the freedoms the creator intended them to have. However, there are two unfortunate consequences of anti-DRM clauses.

  1. Vagueness. The above clauses in the GFDL and the Creative Commons 2.5 license suite are sufficiently vague that they theoretically could prohibit some very reasonable re-distributions, such as distributing on a firewall-protected LAN or on a for-pay service. It's impractical to require that licensee distribute a work to all and sundry, or not at all; it's more important that if a licensee gives a work to someone, the recipient can exercise those rights.
  2. DRM-only platforms. Licensees don't just want to use DRM because they are mean and stingy. There are a number of platforms where DRM is required to distribute a work, most notably some PDA text readers (without a lot of market right now) and games consoles like the Sony Playstation and Microsoft XBox (huge markets). If a licensee is unable to experiment with porting or incorporating works into these platforms, there is a significant limit on their freedom to use the original work. Don't get too caught up in numbers, though; if just one person is unable to experiment with just one platform because of an anti-DRM clause, there's a significant restriction of freedom. (Free software users and developers, as users of a low-market-share platform, should be pretty sympathetic to this problem.)

The main correction to the first problem is to ensure that the anti-DRM clause really only covers the situations you want to avoid. The Against DRM 2.0 does a good job at this; I hope that the Creative Commons 3.0 licenses will also be more specific on this point.

For the second problem, things are a little more difficult. There seems to be a paradox: the licensee's freedoms seem to be at odds with the downstream recipients' freedoms. One creative solution here is parallel distribution. That is, the licensee can experiment with DRM-only platforms and format, but they must also make available modifiable versions of the work in some other format. The Creative Commons 3.0 licenses will have this proviso included; I don't know if there's any plans for this at the FSF or with Against DRM 2.0.

Problems with anti-DRM clauses: macro

The main problem I see with DRM clauses is the idea that they should be used as a tool to prevent the wide dissemination of DRM technologies to begin with. That's the main purpose of the Against DRM 2.0 license, for example. In his essay Can Anti-DRM Clauses in Content Licenses be Free?, Henri Sivonen says, "Such clauses may even be a good idea in the sense that they may discourage the creation of DRM-only players." There's even some idea that limiting a licensee's freedom to experiment is a necessary evil in order to stop DRM's growth.

That anti-DRM clauses will bring about DRM's demise is an unlikely outcome. Simply put, DRM is making more headway in the entertainment and computer industries than Free Content is. The backers of DRM have, by far, more money and more access to decision-makers, producers, and distributors than Free Content advocates have. The corpus of Free Content works available to the public is simply too small and too marginal to put any market pressure whatsoever on decision-makers.

By preventing Free Content works from being usable on DRM-required systems, these licenses will not prevent the dissemination of DRM, but rather will prevent the dissemination of Free Content. Already, there are millions of console game users who can't be reached by Free music, images, or video because those works can't be used on DRM-only consoles.

Penetration of Free Content into the games industry is pretty low, anyways, so it's not the only reason that Free Content isn't out there on game consoles. But putting up a roadblock to using Free Content on the platform isn't stopping game consoles from being sold, and it's unlikely that consumers will rise up against Sony to drop its DRM system so that they can hear "My Life Changed" in the next John Madden NFL Football game.

It's worthwhile to contrast this situation with Free Software programs. For many people, their first introduction to Free Software is using a Free application like Eclipse or Firefox on a proprietary operating system like Windows or Mac OS X. This has been the case for a long time; even the earliest Free Software programs ran mostly on proprietary Unix variants.

An attempt to limit Free Software programs to only run on Free Software operating systems would have killed the entire movement in its infancy. A more pragmatic approach -- introducing Free Software to people on the platforms they're familiar with -- has made the Free Software meme much more attractive and mobile.

As DRM'd platforms continue to grow and encroach on standard computing systems, it seems that a more pragmatic approach on the side of Free Content advocates is warranted, too. There are other means to fight DRM's excesses than to keep our precious Free Content off the dirty platform; they'll be more achievable and less counter-productive.